Posts Tagged ‘ferry county’

As sure as Spring is in the air, the 2010 election races continue to take shape. This last week, candidates for the position of District Court Judge were announced in Ferry County and Okanogan County. Attorney Henry “Hank” Rawson announced his interest in the position opening for Okanogan District Court Judge. Judge David Edwards announced that he is retiring and is not running for re-election. Coverage of Hank Rawson’s announcement is in the print edition of The Omak-Chronicle and is on the KMOW site here. Rawson’s announcement sets him to run against Rick Weber, who has been on the bench there filling in for the last couple years in District Court. Rick Weber was the elected prosecuting attorney in Okanogan County up until 2002, when he chose not to run for re-election. The Wenatchee-World covers the race here. Both men have served as judges and have run campaigns in the past, and my guess is that we are not going to see a lot of fur flying. But I guess a blogger can always hope.

In the print edition of the Ferry County View, Republic lawyer Tom Brown announced his candidacy for judge in Ferry County. The paper doesn’t have the announcement online, but for more info you can check out his Tom Brown for Ferry County Judge site. Brown’s site announces that his campaign manager is Ray Maycumber. Maycumber is a popular sheriff’s deputy who was recently promoted to manager of the 911 center, and has been mentioned in earlier posts here and here. Tom Brown currently works as a deputy prosecutor covering felony cases. His announcement set him to challenge Lynda Eaton who has not announced her intentions.

In Stevens County, no one has announced a challenge to the sitting judge. As you recall Gina Tveit was appointed by the Stevens County Commissioners last year to replace Pam Payne, see post.

A cougar visited Discovery Park in Seattle and made world news last weekend. See BBC article. The cougar was spotted by an employee in the 534-acre park. (A square mile is 640 acres, in case you didn’t know that already.) The animal was trapped and relocated to a more remote location. Game agents placed a radio-tracking collar on the cat.

I found this news story funny, because the Fish and Wildlife Department has frequently taken the position that problematic cougar encounters were the result of human habitat encroachment. In other words, Washington’s population boom led too many people to relocate to rural areas. In the late-90’s when I worked as the prosecutor for Ferry County, I worked with the county commissioners to try to force the State to better assist rural residents in management of these cats. When hound hunting was banned in the late 1996 (by voter initiative) it was widely predicted that there would be a large increase in cougar population in Washington. In 1996, the Seattle-Times ran an editorial urging voters NOT to support a ban on hound hunting, warning that such a ban could lead to 10% yearly increases in cougar population similar to what happened in Oregon. Now a cat was found just a few miles from the newspaper’s downtown offices. Symbolism is often an important driver of political change.

The sighting of a cougar in Seattle got far more media attention then the incident last Wednesday in Stevens County where a cougar attacked a 5-year-old child. The boy was attacked when he and his family were hiking a trail in on Abercrombie Mountain along Silver Creek in the Colville National Forest. The boy’s mother was near him when the cougar suddenly attacked from out of a brushy area. The woman fought off the cat, and the parents took the child about 25 miles to the hospital in Canada. See article. In my opinion, the mother likely saved the child’s life by her actions. Unlike fending off bear attack, most cougar attacks are stopped by fighting back aggressively.

As to the Seattle cougar, Department of Fish and Wildlife Capt. Bill Hebner commented: “We had over 450 confirmed dog attacks on an annual basis in King County and no cougar attacks; so that should help put it into perspective.”

Am I the only one who thinks that comment sounds glib? After all, they did close the park down for 5 days until the cougar was caught. You can see online the great expense and effort that Fish and Wildlife put into removing this Seattle cougar. Does the department respond with the same vigor for problem cats in inhabited areas of Eastern Washington?

In the Seattle-PI article, Capt. Hebner admitted that Department of Fish and Wildlife officials initially thought the sightings of a cougar in Seattle could be bogus. Hebner explained that he did not believe it until he talked to a woman that had seen one. He quizzed her on the cat’s coloration. He said the woman’s description of the tail length was “spot-on.” “She even described how it ran, and her description of it loping and running is exactly how a cougar would move,” Hebner said. You really have to wonder about some of these top-level F&W guys. What in the world else would this woman be describing if not a cougar? Could the caller really have confused that with another animal? At 140 pounds it is 10 times the size of a house cat. In the past, many Eastern Washington residents have complained that F&W officials in Western Washington are often dismissive of cougar fears, or stories of attacks.

Congratulations to Dick Graham, editor of the Republic News Miner, for celebrating his 100th birthday! Dick Graham of the Republic News Miner is not really that old, but I am not 50 years old either, as many concluded after reading his newspaper last week. The Republic News Miner ran a large birthday announcement, and did not differentiate Steve Graham (me) from his son Steve Graham who does not live anywhere near Ferry County. Needless to say, I got a lot of birthday wishes.

I haven’t really noticed other Graham family member birthday announcements in the Republic News Miner over the years, but do remember ten years ago a similar birthday announcement when his son turned 40. I asked Dick Graham about it ten years ago, and his response was that his son was here first. True. I look forward to meeting the other Steve Graham some day. Who would dream that I would move to a town of about 1000 people and face another Steve Graham?

Not much has changed in ten years. Except one thing: there is a thing called “new media.” I wonder what birthday announcements will look like in the next ten years.

For the record, I am 39 years old. If you see Dick Graham of the Republic News Miner wish him a happy 100th birthday. He is a great guy – I consider him a friend – and he has a great sense of humor.

Earlier this week many local Native-American tribes protested the Federal government policies restricting their rights to cross the Canadian border. The problem had been brewing for some time. See High Country News.

When I first moved to Ferry County in 1996, it seemed as if this was the county that was poised to enter big legal battles with the Colville Confederated Tribes. The two governments were set to square off over who had primary jurisdiction to regulate land owned by non-Tribal members on the Reservation. The subject dominated local politics and was the subject of frequent letters to the editor. The Tribes were rumored to have a “million dollar war chest” to fund any litigation with the county. The county commissioners appointed me county attorney in April 1998, and I urged caution on the part of the county. When you are looking for a good “test case” to bring to court, you don’t necessarily want to join the side of the first non-Tribal landowner to raise his hand. In the end, a legal battle was avoided, and in my opinion Ferry County and the Tribes have worked together fairly well for the last ten years.

So I am glad to see that it was the Federal government this time that has drawn the ire of the Colville Tribes and has been accused of violating treaty rights. This has come to the media’s attention rather recently as Tribal members have become fed up with being harassed by U.S. Border officials as they travel to and from their ancestral homelands across the border in British Columbia. As someone who lives near the border myself, I have often found it frustrating to deal with border officials when I travel to Canada. In addition, as an attorney I often represent defendants who get caught up in border issues. The difference, of course, is that local Tribal members have special treaty rights to cross the border. Under the Jay Treaty of 1794, Native-Americans were granted the right to engage in trade and travel between the United States and Canada, which was then British Territory. Until 9/11 no one seemed to question the rights of Tribal members to travel to and from Canada with just their tribal ID cards. But now, there is pressure on the Tribal members to give up the ID cards of their own government and to use passports or state enhanced drivers licenses. Local tribes are now considering issuing their own passports.

This controversy boiled over on June 1st as local Native Americans and Tribal members from Canada staged a protest in the border town of Night Hawk. The protest was peaceful, but the Omak-Chronicle reported that it involved the removal of a border fence. The Border Patrol did not try to intervene as the Tribal members crossed the border and back again. I have to hand it to these protesters. It took courage to take that step. I would have half expected the Feds to arrest some of them. But I guess then it would have become a national story, rather than just a regional story. I hope the Tribes pursue their rights in this respect. Often it is the local governments or the States that are accused of violating treaty rights, the Tribes are right to stand up to the Federal government too. The Tribes in the U.S. sometimes seem to be the favorite underdog of the federal judiciary. I can easily see the Ninth Circuit Court of Appeals approving the rights of Tribal members to set up their own border check point. However, unlike 10 years ago, when the Colville Confederated Tribes had money set aside for litigation, the Tribes now are suffering a budget crisis. This border issue is something that I will try to follow closely.

What do you think? What will come of this issue? Is it fair to ask Native Americans to use State ID cards when they enjoy rights to sovereignty?

My father was an engineer. He always marveled at how many bridges and aqueducts of the Roman Empire are still left standing. But he was perplexed at how many public works projects here in the U.S. are just disasters.

The Pont du Gard aqueduct was built by the Romans in approximately 19 BC. It still stands today.

But what Washington public works projects will last as long as the Pont du Gard?

This question came to mind when I started seeing a bunch of new public works projects in this area. I heard the federal government was assisting in some projects as part of an economic stimulus bill. I remember when the City of Republic had a new shop built ten years ago. It collapsed soon after it was built under the weight of a heavy snow fall. I also noticed how the newly constructed front steps of the court house have begun to crumble and have been roped off.
In Spokane in 2006 the River Park Square parking garage crumbled and allowed a vehicle to roll out and fall five stories to the ground killing someone.
What is to be done about the slipshod work of construction companies on public works projects? What public works disasters am I over looking in the area of Okanogan, Ferry, and Stevens County? Email any photos that you think I should post to steve@grahamdefense.com.

On June 8th, I will be posting a poll to gauge what the public might be looking for in a Sheriff candidate next year in Ferry County. Who do you think might be a good candidate? As of now, I am going to post Pete Warner, Tom Williams, and Bret Roberts. I don’t know what plans they might have on whether or not to run, but those are the three individuals in the area that have run for Sheriff in the past and are still employed in law enforcement. Does anyone have any other suggestions for anybody else who should run, or should be included in this poll? Have your suggestions in by the 5th.

I have run into an interesting issue that I raised in court, only to have the matter settle. If anyone encounters this problem and seeks assistance, I would not mind the pro bono work. Due to their locations, an Okanogan or Ferry County attorney could challenge the current method of selecting juries.

Under Washington Law, jurors must be selected evenly from the populations as a whole. A problem arises when State Courts conduct jury trials of Indian Defendants. The current method of drawing jurors does not reach Indian residents living on trust or allotted land. Such summonses are a form of state court civil process. Under the case of North Sea Products v. Clipper Seafood, such state civil matters are unenforceable on Indian Reservations. 92 Wn. 2d 236, 595 P.2d 939 (1979) (invalidating a state-court garnishment). Additionally, the punishments under RCW 2.36.170 for failing to report for jury duty do not apply to Indians on trust or allotted lands. RCW 37.12.010 provides that the “…state of Washington hereby obligates and binds itself to assume criminal . . . jurisdiction over Indians and Indian territory,… but such assumption of jurisdiction shall not apply to Indians when on their trust lands or allotted lands within an established Indian reservation…” Indians are 16.5% of the Okanogan county population according to the U.S. census. In Ferry County, the figure is 20%. The exclusion of this body invalidates the process. Who comes to serve, and who does not come to serve, must be random. One case on point is Brady v. Fibreboard Corp., 71 Wn. App. 280, 857 P.2d 1094 (1993), review denied, 123 Wn.2d 1018, 871 P.2d 599 (1994). In Brady, the court of appeals reversed a jury verdict because of procedural irregularities. When several jurors on the list did not appear, plaintiff’s counsel asked why, and “the judge responded that they had never been called in.” Id. at 282. Other judges had excused the jurors, and the court of appeals reversed the verdict and explained: “The procedures used here abridge the statutory mandate of random selection. It is undisputed that the initial panel of 90 was randomly selected. However, the randomness of the panel was destroyed when 14 of the 90 were eliminated by the process employed here.” Id. at 283. Like the 14 missing jurors in Brady, many native jurors will have “never been called in.” Aside from the constitutional precepts violated, this is a violation of statute mandate reversal. “When statutory jury selection procedures are materially violated, the claimant need not show actual prejudice; rather, prejudice is presumed.” Id. at 283. One case I looked at is Taylor v. Louisiana, 419 U.S. 522 (1975). In that case, Louisiana’s method of drawing jurors to court was found to be unconstitutional. Louisiana summoned men to appear, but made women’s attendance optional or voluntary. The court in Taylor v. Louisiana visited earlier cases and explained:A unanimous Court stated in Smith v. Texas, 311 U.S. 128, 130 (1940), that “[i]t is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.” To exclude racial groups from jury service was said to be “at war with our basic concepts of a democratic society and a representative government.”

***
We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power – to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge. Duncan v. Louisiana, 391 U.S., at 155 -156. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool.

The court struck down a murder conviction due to the failure to compulsorily include women in jury pools. The best solution would be to ask our Federal Courts or the Colville Tribal Court to issue jury summonses to the Tribal member for the State. This procedure would render the summonses valid. Unlike a mailed state-court jury summons, a summons of a Federal Court of Tribal Court will compel attendance. It is, of course, a crime to ignore a court order or summons under Federal and Tribal law. The Federal Court clearly can enforce, or re-issue State Court process on reservations. As to the Colville Tribal Courts, their cooperation with State Court process is largely discretionary under Section 1-1-102 of their code. The Ferry County Superior Court Judge could order the Ferry County Clerk to send all on-reservation summonses to the Colville Tribal Court for compulsory lawful services under tribal law.

Steve Graham is a criminal defense lawyer, and he splits his time between Spokane and Seattle, Washington. Visit his website by clicking: www.grahamdefense.com ........
Law Office of Steve Graham
1312 North Monroe Street, #140
Spokane, WA 99201
(509) 252-9167